This category contains 149 posts

Never presume

H.W. Fowler’s opinion was that in using presume, the speaker believes the supposition is true and will believe it until he learns otherwise. In using assume, the speaker feels no certainty that his supposition is true or not. In a legal context, presume means “to take as proved until contrary evidence is presented.” Ex. The … Continue reading

Trust Fundamentals

Trusts are a common form of asset ownership. However, the rights and obligations associated with trusts, and even simple matters such as contracting with trusts are not always well understood. Vicki Ammundsen will present a webinar on trust fundamentals on 14 February 2018 at 10.30am.  The webinar will take a case study approach to explore … Continue reading

Myths and liability

Trustees act personally.  As noted in the Supreme Court judgment in Macalister Todd Phillips Bodkins v AMP (emphasis added): “Liabilities incurred by a trustee in relation to a trust are always the personal liabilities of the trustee … A creditor has a personal right to sue a trustee and to get judgment and make the … Continue reading

Trustees “fortunate” to be liable for only 50%

The Rex White Family Trust (RWFT) was found to have failed by reason of uncertainty. While the Court accepted it was appropriate for the trustees to have sought directions from the Court, it was found that they had acted unreasonably by pursuing an argument as to the existence of the RWFT, which was lacking in merit.  … Continue reading

Home is where the trust is?

The decision in Van Uden v CIR highlights the importance of recognising when a property owned by a trust can comprise a permanent place of abode.  The significance of a property being a permanent place of abode is that a person who is otherwise non-resident for tax purposes, will be treated as resident in New Zealand … Continue reading

The curious story of the Angora cat

Para 438 in the decision of MezhProm Bank v Pugachev refers to a phenomenon in patent law known as the Angora cat problem first identified by Professor Franzosi, an eminent academic expert in the field: “Professor Mario Franzosi likens a patentee to an Angora cat. When validity is challenged, the patentee says his patent is … Continue reading

Disclosure to the trustees

Disclosure of trust information to beneficiaries is commonly considered.  However, what of disclosure to the trustees? Consider the case of Daniel v Cundall.  In this case Mr Daniel and Mr Cundall were the trustees of a trust.  Mr Daniel, a lawyer, says that he left the day-to-day trust administration to Mr Cundall. After a long period of … Continue reading

Trustees’ dilemma – how old is old enough to know?

The moral dimension of trusteeship arises in many contexts. The recent New Zealand court decisions concerning information obligations to beneficiaries, and the way this is dealt with in the new Trusts Bill, highlight the difficulty of judging what information is too much or too little to disclose. However, general principles on disclosure bypass the consideration … Continue reading

Family relationship minefield

In Sandman v Giboney, Mr Sandman claims that a law firm knowingly assisted a breach of trust by taking will instructions and assisting in the preparation and subsequent administration of a will when the will-maker did not have sufficient capacity to make a will. The matter came before the court in an application for strike … Continue reading

Resulting trust arises in contractual vacuum

The bare facts of Chang v Lee can be summarised as follows: Ms Lee purchases a property in Sunnynook Mr Chang (Ms Lee’s uncle) advances Ms Lee $275,000 of the $566,000 purchase price The advance was not a gift The terms of the loan advance were incomplete Mr Chang made the advance to Ms Lee on the … Continue reading